Judge Finds Bad Faith in Farm’s Labor Talks

SACRAMENTO, Calif. (CN) – A California Agricultural Labor Relations Board judge has ruled the nation’s largest grower of peaches and plums bargained in bad faith during 2013 negotiations with the United Farm Workers union.

The ruling was a strong rebuke to Gerawan Farming, which has been waging a pitched court battle with the labor board since 2013. It’s also seen as a boost to the United Farm Workers’ claim to represent Gerawan’s workers, and reaffirmed that employees of labor contractors – which Gerawan sought to exclude from negotiations – are part of the union.

The labor board is expected to decide whether to accept the ruling within 60 days.

According to its website, Gerawan Farming is family-owned and operated by Ray, Mike and Dan Gerawan. Its corporate office is in Fresno, and the company operates several processing plants in California’s Central Valley. It has nearly twice as many acres in production, about 12,000, as its nearest competitor, according to growingproduce.com.

In 1992, the labor board certified UFW as the exclusive bargaining representative for Gerawan employees, but no contract was negotiated for about 20 years. The legal fracas started in 2012, after the UFW and Gerawan began discussions on a new contract. When negotiations met with what labor board Administrative Law Judge William Schmidt’s recommendation called “minimal progress,” the UFW invoked its right to a mediator under state law.

The mediator issued a contract in November 2013 that called for wage increases retroactive to July 2013, additional vacation days, and for 3 percent of wages to be paid as union dues. Meanwhile, a campaign was underway to decertify the union that Gerawan was later found to have influenced.

Gerawan gave the anti-union campaign’s leader, Silvia Lopez, a “virtual sabbatical” to conduct the decertification effort and helped arrange for the decertification supporters to travel by bus to Sacramento to protest the dismissal of the first decertification petition. According to the labor board, Gerawan did not discipline signature-gatherers for missing work, but continued to enforce its absence policies among the rest of the crew.

Employees held an election on whether to decertify the union in November 2013, but the ballots were impounded by the labor board and never counted. In 2016, the labor board upheld a ruling that Gerawan interfered with the election and nullified the vote.

Meanwhile, Gerawan, along with employee Lupe Garcia, questioned the validity of the mandatory mediation law in Gerawan Farming v. ARLB. In May 2015, California’s Fifth Appellate District found the law was unconstitutional. An appeal before the California Supreme Court is still pending.

The issues in the current decision – severed from the previous case – involve whether Gerawan engaged in bad faith while negotiating a collective bargaining agreement with the UFW, and whether it violated the law during negotiations by insisting that any agreement it reached would not apply to its contracted farm laborers.

In an April 14 ruling, Judge Schmidt found Gerawan had done both.

Gerawan, Schmidt wrote, “engaged in a time-consuming charade while repeatedly suggesting an ‘election’ to its employees. When a group of employees finally took the hint, and acted, respondent’s managers and supervisors jumped in to lend considerable support to the decertification effort. Meanwhile, respondent announced pay raises to employees whenever it suited its anti-union campaign without regard to the legally mandated duty to bargain with the employees’ representative.”

Schmidt noted Gerawan and the UFW met 14 times for 2-3 hours in the first half of 2013, and a continual point of contention was Gerawan’s demand to include a “right to work” clause in the contract so workers could opt out of the union. No UFW-negotiated contract had ever contained such a clause. And the raises, Schmidt wrote, were Gerawan’s way of “virtually thumbing its nose at the duty to bargain.”

Armando Elenes, third vice president of the UFW, said in a phone interview that the judge made it very clear what has been going on.

“The judge basically said that Gerawan never intended to reach an agreement,” Elenes said. “There were all these other proposals they were making as well, like trying to get the union to put up a multi-million-dollar bond.”

Schmidt recommended that Gerawan must stop engaging in collective bargaining with the UFW with no intention of reaching an agreement, refusing to bargain with the UFW regarding wages, hours and other terms, and interfering with employees’ rights to collectively bargain.

He also recommended an order that the company must repay its employees for the losses they suffered as a result of the failure to bargain, submit all payroll records, timecards, Social Security payments and other personnel records to the labor board, and grant labor-board agents access to work sites and more.

Elenes said it’s a victory for the UFW and the workers, particularly because Gerawan must repay the employees and that the judge found contracted laborers are union workers. He said the UFW has a list of employees owed and how to contact them.

Meanwhile, Elenes said the UFW had been told oral arguments in the Supreme Court case over mandatory mediation will take place within months.

“There’s a bunch of different cases, but this particular case is focused on unfair labor practices regarding bad-faith negotiating,” he said.

Gerawan is represented by David Schwarz of Irell & Manella in Los Angeles. Schwarz said Gerawan will appeal the decision because it ignores the fact that the underlying forced-contracting process was declared unconstitutional and is now before the state Supreme Court.

“Can the state of California dictate the terms of a contract and force it on a company and its workers,” he said.

Schwarz also said that the labor board as presently constituted is not impartial and cannot fairly decide the issue because it includes former state Sen. Isadore Hall, a Democrat who marched with UFW workers and publicly declared his solidarity with the UFW campaign against Gerawan Farming.

“It’s hard for us to see how this member, Isadore Hall, can claim impartiality,” Scharwz said. “Gerawan looks forward to a full and fair hearing as to these issues.”